Can an employee be dismissed without notice for gross negligence?
In the case of Adesokan v Sainsbury’s, the Court of Appeal has confirmed that gross negligence may justify summary dismissal without notice or payment in lieu of notice.
The Claimant was a Regional Operations Manager, one of the more senior posts in the company, responsible for 20 of the Sainsbury’s stores and had worked for Sainsbury’s for 26 years. Sainsbury’s operates a process called the Talkback Procedure (TP) under which the level of engagement of its staff is quantified and assessed. The results of TP also influence performance progression, target setting, and decisions about pay, bonus and staff deployment. TP is a part of Sainsbury’s strategy for achieving a positive working environment, and all employees are aware that it must not be interfered with or influenced by managers.
Mr Briner, a member of the HR team that the Claimant worked alongside, sent an inappropriate email to five store managers for whom the Claimant had responsibility, encouraging them to focus on getting only their most enthusiastic colleagues to complete the TP exercise. This action with inconsistent with the TP ethos and risked compromising TP results.
The Claimant, on becoming aware of the email, took no steps to rectify this clear interference with the TP process. The Claimant was subsequently dismissed for gross negligence, which was considered tantamount to gross misconduct.
The Claimant sued Sainsbury’s for breach of contract in respect of his notice pay, lapsed shares and unpaid benefits.
The Court of Appeal held that the Claimant’s negligent dereliction of duty could be characterised as a breach of trust and confidence constituting gross misconduct. The Court stated that in assessing whether behaviour amounted to gross misconduct, the focus should be on the damage to the relationship between the parties. Whilst dishonesty and other deliberate actions which poison the relationship will naturally fall into the gross misconduct category so, in appropriate cases, can acts of gross negligence.
Not every negligent act, or failure to act will amount to gross misconduct, and each case will turn on its own facts. Employers should ensure that their disciplinary policies contain a non-exhaustive list of those actions and/or inactions that could be viewed as gross misconduct. These could include dereliction of duties and other serious acts or omissions leading to a breakdown in trust and confidence.